The dual meaning of evidence-based judicial review of legislation

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Abstract

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualisation of evidence-based judicial review. It argues that evidence-based judicial review can have two related, but very different, meanings: One in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decisionmaking; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. The article then employs this novel insight about the overlooked dual meaning of evidencebased judicial review to shed new light on some of the major debates about this phenomenon, such as: Whether it should be understood as part of substantive or procedural judicial review; the relationship between evidencebased judicial review and evidence-based law-making; and the role of legislative findings in constitutional adjudication.

Original languageEnglish
Pages (from-to)107-133
Number of pages27
JournalTheory and Practice of Legislation
Volume4
Issue number2
DOIs
StatePublished - 3 May 2016

Bibliographical note

Publisher Copyright:
© 2016 Informa UK Limited, trading as Taylor & Francis Group.

Keywords

  • Congressional findings
  • Due process of law-making
  • Evidence-based judicial review
  • Evidence-based law-making
  • Legislative findings
  • Procedural judicial review
  • Rational law-making
  • Semi-procedural judicial review
  • Substantive judicial review

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